A Modest Defense of Allowing Firms to Execute Junior Associates
Getting a job is difficult, particularly in a down economy. One way in which one sees this is in the use of unpaid or poorly paid intern labor. Many people at the bottom of the employment ladder are willing to work for minimal compensation as a way of learning the ropes and getting their foot in the door. Internships do two things for employers. First, they provide a pool of cheap – if unskilled – labor. Second, they shift the costs of training from the employer to the employee. In effect, the employer holds off on hiring the employee until he or she has expended her own resources in the form of time and labor acquiring skills that the employer desires. Internships are thus much like professional education — a training cost that is bourn mainly by employees rather than employers.
Here’s a question: Why is the military different?
Recruits into the military get pay and benefits from day one, despite the fact that Uncle Sam must spend months and sometimes years training recruits before he can get any useful labor out of them. Given the high costs of training, why doesn’t the military shift some of those costs to recruits in the form of unpaid internships or employee-financed training programs? It seems to me that there are two explanations, one economic and one legal. The economic story is simple supply and demand. There are relatively few people interested in being soldiers in relationship to the military’s demand for personnel. Accordingly, prospective grunts must be offered a relatively good deal to induce them to join up. Fair enough. There may be another, legal explanation, however.
We generally don’t think of it in these terms, but joining the military is a kind of employment contract. The recruit promises to provide the government with his labor and the government promises to pay him for it. In this sense it is not all that different than any other employment contract. The big difference comes in terms of the remedies that the employer acquires against the employee. In your standard at-will employment contract, the employee can walk away at any time should he or she wish without breaching the contract. Even in cases where the employment contract is for a term, the actual remedies of the employer in the event of breach are pretty slim: a suit for money damages (subject to the duty to mitigate, etc.) and perhaps some enhancements like bonus clawback clauses.
Now compared that with the military. Breach of the military employment contract by the employee has a couple of special names: mutiny and desertion. The remedies that Uncle Sam gets as employer are impressive: fines, imprisonment, and – in theory – execution. Strikingly, however, this harsher remedial regime, in many ways, works for the benefit of the recruit.
An ordinary employer who makes a huge investment in the education of its employees has relatively few means of guaranteeing that it will recoup its investment. Hence, we see unpaid internships. Another example would be the fact that law firms never hire untrained college graduates and send them to law school on the firm’s dime. The military, on the other hand, has much better chance of recouping its investment in training.
This is why prospective soldiers with no military background don’t take out student loans to finance their stint in basic training. Perhaps my students would be better off if we allowed them to enter a contract in which a law firm could hang them in the event of desertion.